City and County of San Francisco v. Donald J. Trump et. al., County of Santa Clara v. Donald J. Trump,, No. 3:2017cv00485-WHO (N.D. Cal. 2017)

The AAUP joined an amicus brief submitted to the US Court of Appeals for the Ninth Circuit in support of the permanent injunction that enjoins the US government from enforcing Section 9 (a) of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which strips state and local governments deemed to be “sanctuary jurisdictions” of their eligibility to receive federal funding (the “Executive Order”). The AAUP amicus argues that upholding the Executive Order would create a precedent that would enable the Trump administration to extend the Executive Order to apply to colleges and universities, and addresses the harms that would flow from overturning the permanent injunction. 

On January 25, 2017, the Trump administration issued Executive Order 13768 which declares that “(i)t is the policy of the executive branch to . . . (e)nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Section 9 implements that policy by commanding executive branch officials to strip state and local governments deemed to be “sanctuary jurisdictions” of their eligibility “to receive grants.” The City and County of San Francisco filed suit in the US District Court for the Northern District of California against President Trump and other federal officials, alleging that the Executive Order violated the separation of powers doctrine, the Tenth Amendment, and due process guarantees. On April 25, 2017, the District Court entered a nationwide preliminary injunction against the Executive Order determining that the City and County of San Francisco and County of Santa Clara had pre-enforcement standing to protect hundreds of millions of dollars of federal grants from the unconstitutionally broad sweep of the Executive Order. 

The amicus brief argues that such an extension would negatively impact colleges’ and universities’ ability to carry out their public mission (“This public mission extends to private and nonprofit colleges and universities as well. In the United States, colleges and universities explicitly see themselves as “conducted for the common good.”  AM. ASSOC. OF UNIV. PROFESSORS, 1940 Statement of Principles on Academic Freedom and Tenure), and their interests in developing a diverse student body, “ . . .  A diverse student body breaks down stereotypes, “promotes learning outcomes,” and “‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’” Grutter, 539 U.S. at 330. (quoting from amicus brief); Fisher II, 136 S. Ct. at 2210. Diversity contributes to a robust exchange of ideas, exposure to different cultures and the acquisition of competencies necessary in our increasingly diverse society and closely connected world. Id. at 2211.” The brief also emphasizes the harms caused by the Executive Order—undermining the critical interest that our society has in the education of all its residents regardless of immigration status; threatening higher education’s constitutional interest in educational independence to create the sort of diverse student body that is critical to the intellectual and academic life of the community; devastating university research opportunities by withdrawing federal funding for failure to participate in federal immigration enforcement; and penalizing students’ opportunities for higher education by withdrawing federal student scholarship funding.